Tingle individual, lie is therefore accountable only for one payment of
his value. But he is then entitled at the fame time to take fuch value
from the ufurper, as both the offences were committed in his hands;
•^after which he is to pay an half of fuch value to the firfl avenger;
becaufe the firft avenger is entitled to a complete value, fince at the
time of the firft offence no other offence had taken place, fo as to in-
terfere or prevent this ; and his right is not leffened by any fubfequent
prevention; and therefore, where he finds an half of the value of the
flave in the mafter’shands, unoccupied by any other claim, he is entitled
to poflefs himfelf of it ;— and the mafter is again to reimburfe
himfelf for. this from the ufurper, (the firft avenger having taken it
from him on account of an.offence committed in his [the ufurper’s]
hands) and to retain what he thus recovers for himfelf; for he is not
required to pay it to the firft avenger, as he has already received his full
right,— nor to the fecond, as henever was entitled to more than the
h a lf value, becaufe of the priority of right of the firft avenger, and has
already received all he could claim.
A perfon I f any perfon ufurp a free-born infant, (that is, take him away,
ufurping an w ithaut the confent of his guardian,) and the infant die, either fud-
fponfible If denly, or o f any diforder (fuch as afever for inftance,) the ufurper is
hand's by any not refponfible,— whereas, if he die by a ftroke of lightning, or the
accident. bite of a fnake, the ufurper’ s Akilas are accountable for the complex
fine. This proceeds upon a favourable confirmation. Analogy would
fuggeft that there is no refponfibility in either inftance, (and fuch is
the opinion of Ziffer and Shafeif) becaufe ufurpation connot be efta-
blifhed with refpedt to a freeman, infomuch that if the infant ufurped
be a Mokatib, ftill the ufurper is not accountable for any thing, not-
withftanding a Mokdtib be free with refpeft to poffejfon only * ; and as
the infant in queftion is free in point both of pojjejfion and perfon, re-
$ A Mokatib differs from an abfolute flave, in this particular (among others,) that he
.it capable o f holding property in his own right.
fponfibility
fponfibility for him is not incurred a fortiori. The reafon, however,
for a more favourable confirmation, in this inftance, is that although
the ufurper be not refponfible on account of the ufurpation, yet he is
fo on account of the deflruElioti, as that is referred to him, he having
taken the infant to the place where, the fnake was, or the lightning
fe ll; for thole are not to be met with in every, place; and confe-
quently, in taking the infant thither he was guilty of a tranfgreftion,
and rendered fruitlefsthe care of the guardian. The death of the infant
is therefore, in this inftance, referred to the ufurper, in the fame manner
as in the cafe of digging a w e ll; and this (as in that inftance) is
homicide by an intermediate caufe. It is otherwife where the infant dies
fuddenly, or of fome difeafe; for in this there is no difference from a
difference of place. If, however, the ufurper carry the infant to a
particularly unhealthy fpot, and the infant die of any diforder eon-
traded there, the Akilas are accountable for the fine, as the death, in
this inftance, bears the conftrudion of homicide.
I f a perfon place his flave in depofit with an infant, and the infant
kill fuch flave, his Akilas are accountable for the fine, (that is, the
value of the flave;) whereas, if a perfon place a quantity of wheat
(for inftance) in depofit with an infant, and the infant confume fuch
wheat, he is no way refponfible. This is according to Haneefa and
Mohammed. Aboo Toofcf and Shcfe’i allege that the infant is equally
refponfible in either cafe. In the fame manner, i f a perfon place a
quantity of wheat in depofit with an inhibited flave, and the flave con-
fume the fame, he is not then immediately refponfible, according to
Haneefa and Mohammed, but is liable to account for.it after he (hail
have obtained his freedom; whereas, according to Aboo Yorfaf and
Shafe'i, he is then accountable. T h e fame difference of opinion alfo
prevails between thofe doctors where a perfon lends any article, or
money, to a flave or an infant, ami the flave or infant deftroy the
fame. T h e argument of Aboo Y o o ff and Shtfe'i is that the infant has
deftroyed the property of another without his confent; and as this
Vot,. IV , I i i property
An infant
truftee is re-
Iponfible for
the dejîruflion
o f the dépolît,
but not for
the confump-
tion o f it.